Samara v. MatarSamara v. Matar
This case concerns the claim- and issue-preclusive significance, in future litigation, of a conclusion relied on by the trial court and challenged on appeal, but not addressed by the appellate court. We hold that the preclusive effect of the judgment should be evaluated as though the trial court had not relied on the
I. BACKGROUND
A. Claim and Issue Preclusion
The law of preclusion helps to ensure that a dispute resolved in one case is not relitigated in a later case. Although the doctrine has ancient roots (see Note, Developments in the Law: Res Judicata (1952) 65 Harv. L.Rev. 818, 820-822), its contours and associated terminology have evolved over time. We now refer to “claim preclusion” rather than “res judicata” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 (Mycogen)), and use “issue preclusion” in place of “direct or collateral estoppel” (Migra v. Warren City School Dist. Bd. of Educ. (1984) 465 U.S. 75, 77, fn. 1; see Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 824 (Vandenberg)).1
Claim and issue preclusion have different requirements and effects. Claim preclusion prevents relitigation of entire causes of action. (Mycogen, supra, 28 Cal.4th at p. 896; see also id., at p. 904 [discussing “primary right theory,” which defines the scope of a cause of action].) Claim preclusion applies only when “a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit.”
B. Facts and Procedural History
Plaintiff Rana Samara was missing a tooth. Dr. Haitham Matar recommended that she receive a dental implant, and Dr. Stephen Nahigian performed the implantation surgery. Samara later sued them both for professional negligence. Our focus is Samara‘s contention that defendant Matar is vicariously liable for former defendant Nahigian‘s alleged tort.
1. First judgment, in favor of Nahigian
Nahigian moved for summary judgment. He argued, in pertinent part, that the suit against him was untimely and that he did not cause Samara‘s alleged injuries. The trial court agreed that the suit was untimely with respect to Nahigian (unlike Matar) and further agreed that no material factual dispute prevented judgment in Nahigian‘s favor on the issue of causation. The court entered judgment on both grounds.
Samara appealed. She conceded that the judgment against her could be affirmed based on the statute of limitations. Concerned about the potential preclusive effect of the trial court‘s determination regarding a lack of causation, however, she urged the Court of Appeal to reverse that portion of the trial court‘s
2. Second judgment, in favor of Matar
Around the time Samara noticed an appeal from the first judgment, Matar moved for summary judgment in the trial court. As relevant here, Matar argued that the court‘s earlier no-causation determination precluded holding him liable for Nahigian‘s conduct. After the remittitur issued in the first appeal, the trial court agreed, granting Matar‘s motion for summary judgment. Although the particulars of the trial court‘s reasoning are not entirely clear, the core of its rationale was that because Nahigian was not liable to Samara for his conduct, Matar could not be liable for that conduct vicariously.
The Court of Appeal, in an opinion issued by the same panel that decided the first appeal, reversed and remanded the matter. It concluded that preclusion provided no basis for the trial court‘s decision. The court‘s analysis of claim preclusion focused on whether there had been “a final judgment on the merits in the first suit.” (DKN Holdings, supra, 61 Cal.4th at p. 824.) The court observed that the prior judgment was affirmed solely because of the statute of limitations, which the court believed to be a “purely procedural ground” rather than a decision on the merits. Nevertheless, the court acknowledged that under our decision in Skidmore, supra, 27 Cal. 287, a judgment on the merits affirmed on purely procedural grounds might qualify as a judgment on the merits in the relevant sense. Noting that “the Supreme Court [of California] might want to address” the continuing vitality of the “Civil War-era” Skidmore decision, the Court of Appeal
We granted Matar‘s petition for review. He contends that the Court of Appeal‘s claim- and issue-preclusion analysis is inconsistent with Skidmore and asks us to “address the viability of” that 1865 decision. Because we conclude that Skidmore must be overruled, we agree with the Court of Appeal that Matar is not entitled to summary judgment on preclusion grounds.
II. SKIDMORE‘S VIABILITY
A. The Skidmore Decision
To contextualize Skidmore‘s analysis of the preclusive effect of a particular judgment, we begin by describing the litigation resulting in that judgment.
Walter Skidmore was charged with murder. (Skidmore, supra, 27 Cal. at p. 289.) To secure his appearance to answer the charge, Skidmore and his sureties entered into a recognizance, something roughly akin to a bail bond. (See ibid.) Skidmore also created a trust for his sureties’ financial protection, pledging property toward the payment and extinguishment of the recognizance should he fail to appear. (People v. Skidmore (1861) 17 Cal. 260, 261; unless otherwise noted, all short-form Skidmore citations concern the 1865 appellate decision.) After he failed to appear, the People sued. (Ibid.) The suit sought equitable relief against the trustee, urging that the property held in trust “be applied to the debt due by the recognizance.” (Ibid.; see also Skidmore, supra, 27 Cal. at p. 289.) The trial court entered judgment against the People, and the People appealed.
We affirmed. (People v. Skidmore, supra, 17 Cal. at p. 262 [initial appeal].) Our opinion addressed a demurrer based on “a misjoinder of causes of action, among other [objections].” (Id., at p. 261.) Declining to reach those other objections, we agreed that there had been a misjoinder: “It may be that the sureties will not be held liable at all; or it may be, if they are, that they are ready and willing to pay whenever their liability is declared; and in that case, there would be no necessity of coming upon this fund. If, after judgment, the defendants are insolvent, another question might arise, or the question might arise of a right to sell or subject this property as the property of Skidmore. But it is not necessary to pass upon this matter in advance of the proper stage of the inquiry.” (Id., at p. 262.) “The effect of the judgment and of this affirmance,” we added, “will not be to preclude the plaintiff from suing again when the cause of action can be more formally set out.” (Ibid.)
A second suit followed. (See Skidmore, supra, 27 Cal. at p. 289.) In the decision at the core of this case, we held that the People‘s claim was barred. In determining whether the decision in the first case barred the second suit, we treated as dictum our earlier statement that the first suit would not preclude a second one (id., at p. 293) and deemed the dispositive issue whether the judgment in the first suit was “based upon the merits” (id., at p. 289). We concluded that it was. (Id., at p. 294.) The judgment entered by the trial court, we reasoned, was “based upon the merits of the claim, and not upon the dilatory matters raised by the demurrer nor any other mere technical defect.” (Ibid.) And although our affirmance had been limited to the misjoinder problem — a non-merits issue — we noted that we had not reversed or modified the trial court‘s judgment. (Id., at pp. 292-293.) As we explained, “in examining the judgment in connection with the errors assigned, [we] found that there was at least one ground upon which the judgment could be justified, and therefore very properly refrained from
Courts considering Skidmore have disagreed about whether its precedential force extends to issue preclusion. (Compare, e.g., Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 86 (Zevnik) [no] with, e.g., Diruzza v. County of Tehama (9th Cir. 2003) 323 F.3d 1147, 1153 (Diruzza) [yes].) It might be argued that Skidmore addressed only claim preclusion and that requirements unique to issue preclusion make Skidmore inapplicable in that context. (See, e.g., Zevnik, at p. 86 [”Skidmore involved res judicata rather than collateral estoppel and therefore is not on point“].) Skidmore, however, cannot be so easily limited. It is not enough to observe, for example, that issue preclusion applies only to issues “actually litigated and necessarily decided in the first suit” (DKN Holdings, supra, 61 Cal.4th at p. 825; see Zevnik, 159 Cal.App.4th at p. 88), because it matters which court‘s decision is the focus of the inquiry. If, as in Skidmore, the focus of the preclusion inquiry is the trial court‘s decision, then an issue might have been “actually litigated and necessarily decided” (DKN Holdings, at p. 825) whether or not an appellate court agreed with the trial court‘s disposition of the issue.
We need not decide exactly what Skidmore means for the law of issue preclusion. (Cf. Moss v. Superior Court (1998) 17 Cal.4th 396, 401 [disapproving a prior decision “insofar as it might be read to apply” to certain orders]; People v. Carbajal (1995) 10 Cal.4th 1114, 1126 [disapproving a prior decision “insofar as [it] may be read” in a particular way].) For present purposes, it is enough to say that Skidmore‘s focus on the trial court‘s decision, without regard for the basis of the appellate court‘s affirmance, could reasonably be understood to bear on the issue preclusion inquiry. (See Diruzza, supra, 323 F.3d at p. 1153; see also People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1574-1575 [suggesting that Skidmore was relevant to issue preclusion, but refusing to follow it]; Newport Beach Country Club, Inc. v. Founding Members of Newport Beach Country Club (2006) 140 Cal.App.4th 1120, 1130-1132 [same].)
B. Skidmore‘s Aftermath
Although Skidmore has not been widely cited, there was once broad support for the view that the preclusive effect of an affirmed judgment should be determined without regard for the basis of the affirmance. (See, e.g., Bank of America v. McLaughlin etc. Co. (1940) 40 Cal.App.2d 620, 628-629; State ex rel. Squire v. City of Cleveland (Ohio 1937) 22 N.E.2d 223, 225-226; Kinsley Bank v. Woods (Mo.Ct.App. 1934) 78 S.W.2d 148, 149; Russell v. Russell (3d Cir. 1905) 134 F. 840, 840-841; Town of Fulton v. Pomeroy (Wis. 1901) 831, 832-834; Finch v. Hollinger (1877) 46 Iowa 216, 217-218; but see, e.g., Moran Towing & Transportation Co. v. Navigazione Libera Triestina, S.A. (2d Cir. 1937) 92 F.2d 37, 40-41.)
However, courts’ understanding of preclusion has evolved in the more than 150 years since Skidmore was decided. Although no precise turning point can or must be identified, one influential development occurred in 1942, when the Restatement First of Judgments diverged from Skidmore‘s reasoning. The Restatement, concerning claim preclusion, conveyed that “[w]here the trial court bases the judgment for the defendant upon two alternative grounds, one on the
The Restatement Second of Judgments, published in 1982, echoes the position of the Restatement First of Judgments with respect to issue preclusion. (See Rest.2d Judgments (1982) § 27, com. o, p. 263.) The second Restatement does not appear to take an explicit position on the claim preclusive effect of a judgment affirmed on a non-merits ground, perhaps reflecting aversion to the terminology ” ‘on the merits[,]’ ” which has “possibly misleading connotations.” (Id., § 19, com. a, p. 161.) Regardless, the second Restatement conveys that in the absence of an appeal, a trial court “dismissal . . . based on two or more determinations, at least one of which, standing alone, would not render the judgment a bar to another action on the same claim . . . should not operate as a bar.” (Id., § 20, com. e, p. 172.) Nothing in the second Restatement suggests that if such a judgment is affirmed solely on grounds that would not trigger claim preclusion, the judgment should be imbued with claim preclusive effect.
The weight of more recent authority is in accord with these Restatements, at least with respect to cases in which an appeal has been taken. (See 18 Wright et al., Fed. Practice and Procedure: Jurisdiction & Related Matters (3d ed. 2016) § 4421, p. 619 [“The federal decisions agree with the Restatement view that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision“]; 18A Wright et al., supra, § 4432, p. 60 [“the nature of the ultimate final judgment in a case ordinarily is controlled by the actual appellate disposition“]; see also, e.g., Omimex Canada, Ltd. v. State, Dept. of Revenue (Mont. 2015) 346 P.3d 1125, 1129-1130; Tydings v. Greenfield, Stein & Senior, LLP (N.Y. 2008) 897 N.E.2d 1044, 1046-1047; Beaver v. John Q. Hammons Hotels, L.P. (Ark. 2003) 138 S.W.3d 664, 666-670; Stanton v. Schultz (Colo. 2010) 222 P.3d 303, 309; Connecticut Nat. Bank v. Rytman (Conn. 1997) 694 A.2d 1246, 1254; Humana, Inc. v. Davis (Ga. 1991) 407 S.E.2d 725, 726-727; but see, e.g., Markoff v. New York Life Ins. Co (9th Cir. 1976) 530 F.2d 841, 842 [attempting to discern Nevada law].) Although most of these authorities concern issue rather than claim preclusion, their refusal to afford preclusive significance to a trial court determination that evades appellate review is informative.
C. Skidmore‘s Continuing Vitality
1. Skidmore reflects a flawed view of preclusion
We agree with the weight of modern authority that Skidmore‘s approach to preclusion is flawed.
Rules of claim and issue preclusion are, or at least should be, inextricably intertwined with rules of procedure. (See Rest.2d Judgments, supra, Introduction, pp. 5-13.) The law of preclusion reflects a view “that at some point arguable questions of right and wrong for practical purposes simply cannot be argued any
The availability of a direct appeal reflects a sensible determination that the process culminating in a trial court‘s disputed decision is not sufficient to resolve litigation conclusively. Of course, a litigant‘s ability to secure appellate review may be waived or forfeited, as when a litigant fails to file a timely notice of appeal or fails to make an objection in the trial court. But when a litigant properly seeks appellate review of a ground underlying a trial court‘s determination, the fortuity that the judgment may be sustained on some other ground should not imbue the challenged ground with final and conclusive effect. The challenged ground is no more reliable — no more deserving of finality — merely because it need not be evaluated to resolve the appeal. (See Zevnik, supra, 159 Cal.App.4th at p. 85.)
Recall, for example, the hypothetical breach of contract action in which the trial court concludes that no contract existed, and that even if a contract existed, the contract was not breached. (See ante, at p. 1.) If an appellate court agrees that any existing contract was not breached — but does not consider whether any contract existed in the first place — it would be harsh indeed to bind the plaintiff to the trial court‘s “no contract” determination, preventing the plaintiff from suing the defendant on the contract even for subsequent conduct that clearly would constitute a material breach. Perhaps there was a contract, perhaps not. But the trial court‘s answer to that question should not be final merely because the judgment could be affirmed on another ground. Skidmore‘s focus on the trial court‘s reasoning, however, is in tension with this conclusion.
Skidmore also is in tension with some of our other preclusion case law. We have repeatedly underscored the important role that the availability of appellate review plays in ensuring that a determination is sufficiently reliable to be conclusive in future litigation. We have, for example:
- Refused to give preclusive effect to a trial court‘s legal ruling on child custody issues presented by writ of habeas corpus, acknowledging that, “[s]ince an order denying an application for writ of habeas corpus is not appealable,” finding preclusion would “wrongfully deprive[]” “the unsuccessful petitioner” “of custody until such time as he could allege a change in circumstances” (In re Richard M. (1975) 14 Cal.3d 783, 790);
- Held that a finding made in connection with a cause of action should not have preclusive effect when the finding was adverse to the party that prevailed on that cause of action, in part because the party could not appeal (see Albertson v. Raboff (1956) 46 Cal.2d 375, 384-385);
- Embraced a rule that an entity cannot be bound by a judgment as a privy, based on alleged control over the underlying litigation, if the entity lacks
control over whether to take an appeal (see Minton v. Cavaney (1961) 56 Cal.2d 576, 581-582); - Held that at least a certain type of issue preclusion might not attach to the decision of a private arbitrator, in part because “the arbitrator‘s errors must be accepted without opportunity for review” (Vandenberg, supra, 21 Cal.4th at p. 832); and
- Explained that, when evaluating the preclusive effect of an administrative determination, ” ‘[t]he opportunity for judicial review of adverse rulings’ is an important procedural protection against a potentially erroneous determination and is a factor to consider in determining whether collateral estoppel [(that is, issue preclusion)] applies. ([Citation]; see also Rest.2d Judgments, § 28(1), p. 273 [issue preclusion will not apply if the party to be precluded could not, as a matter of law, obtain review].)” (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 875-876.)2
The fundamental problem with Skidmore, then, is that it improperly gave effect to a trial court determination that evaded appellate review. Our opinion in the appeal preceding Skidmore considered only whether there had been a misjoinder of causes of action. We nevertheless held in Skidmore that the judgment at issue in the first case was “upon the merits,” because of a trial court determination that we did not embrace on appeal. (Skidmore, supra, 27 Cal. at p. 293.) More than a century later, and consistent with the modern approach to preclusion described above, we now conclude that a ground reached by the trial court and properly challenged on appeal, but not embraced by the appellate court‘s
Matar contends, however, that Skidmore properly reflects the principle that a trial court‘s judgment is presumptively correct. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This argument confuses two concepts. It is true that a trial court‘s judgment is presumed correct, and so ordinarily will not be set aside on appeal absent an affirmative showing of reversible error. (See id.; but see, e.g.,
Matar also argues that affording preclusive effect to a trial court‘s alternative (but ultimately unnecessary) determination would reduce litigation, thereby promoting judicial economy. We are not so sure. “While the rules of preclusion are supported in part by considerations of efficiency, affording the possibility of reconsideration is also a matter of efficiency, for it relaxes the requirements of procedural meticulousness in the first instance.” (Rest.2d Judgments, supra, Introduction, p. 12.) To hold that an unreviewed alternative ground has preclusive effect “would put pressure on appellate courts to review
Nor is it clear that affording preclusive effect to such an alternative ground would protect parties from the burdens of litigation, as Matar also argues. If all unreversed trial court determinations must be given preclusive effect, then nonparties, armed with the issue preclusive effect of the trial court‘s unreviewed determination, may be encouraged to engage in litigation with the party bound by the effectively unappealable determination. (Cf. Vandenberg, supra, 21 Cal.4th at pp. 831-834.)
In any event, our judicial system does not exist simply to resolve cases quickly, nor to prevent litigation from ever taking place. It is a serious matter whether a decision is correct in law and results from a fair process for all sides. Affording preclusive effect to a trial court determination that evades appellate review might speed up the resolution of controversies, but it would do so at the expense of fairness, accuracy, and the integrity of the judicial system. We decline to endorse that tradeoff. (Cf. Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77 (Johnson) [refusing to give preclusive effect to a judgment based on laches, notwithstanding “the public policies of giving certainty to legal proceedings, preventing parties from being unfairly subjected to repetitive litigation, and preserving judicial resources“].)
We further observe that Matar‘s concerns about repetitive litigation are overstated. For one thing, if Matar had sought summary judgment on causation grounds when Nahigian did, Matar, too, would have had the benefit of the trial court‘s decision. Had Samara appealed, the judgment would not have been
More generally, courts are not powerless to prevent a waste of judicial resources. Appellate courts can affirm on multiple grounds where appropriate. Trial courts can decline to reach issues that are unnecessary for judgment. And although, on remand, the trial court in this case should resolve Matar‘s motion for summary judgment without relying on the supposedly preclusive effect of the judgment in favor of Nahigian, the court need not forget or ignore the work it has already completed in this litigation. Declining to find preclusion does not require that a new judge be assigned and the case start afresh; it means only that a prior determination by itself does not necessarily, as a matter of law, bind the future one — and that the correctness of that future determination, if appealed, can be reviewed on its merits.
2. Stare decisis does not compel continued adherence to Skidmore
“[T]he doctrine of stare decisis” is “a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices.” (Moradi-Shalal v. Fireman‘s Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) But the policy is just that — a policy — and it admits of exceptions in rare and appropriate
Moreover, several of the concerns that can give stare decisis particular force are not applicable in this case. When the party urging us to overrule a decision could have easily avoided the decision‘s effect, for example, we are less inclined to disturb our precedent. (See, e.g., Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 272 [declining to overrule principle that nonparty class member cannot appeal, where other options meant that member would not be “discourage[d] . . . from filing a meritorious appeal“]; cf. Kimble v. Marvel Entertainment, LLC (2015) __ U.S. __, __ [135 S.Ct. 2401, 2408] [declining to overrule case that contracting “parties can often find ways around“].) Under Skidmore, however, a party that has lost in the trial court and has appealed the trial court‘s rulings can do little to ensure reversal of an adverse but ultimately unnecessary trial court determination.
Nor does Skidmore implicate the reliance concerns that have encouraged adherence to precedent in other contexts. We are particularly reluctant to overrule precedent when, unlike here, “[d]oubtless many people” have entered into transactions in reliance upon that precedent. (Sacramento Bank v. Alcorn (1898) 121 Cal. 379, 382.) Although Skidmore might theoretically have induced some
Under all these circumstances, we conclude that People v. Skidmore, supra, 27 Cal. 287 should be — and is now — overruled. We caution, however, that we take no position on the significance of an independently sufficient alternative ground reached by the trial court and not challenged on appeal.
III. NEITHER CLAIM NOR ISSUE PRECLUSION SUPPORTS THE SUMMARY JUDGMENT IN FAVOR OF MATAR
Whether the trial court erred by granting Matar‘s motion for summary judgment is a question of law we review de novo. (See, e.g., Johnson, supra, 24 Cal.4th at pp. 67-68.) We hold that it did. The critical point here is that the preclusive effect of the judgment in favor of Nahigian should be evaluated as though the trial court had not reached the causation issue. (See ante, Part II.C.) That premise implies that the causation issue was not “necessarily decided in the first suit,” or even “decided” at all, rendering issue preclusion unavailable. (DKN Holdings, supra, 61 Cal.4th at p. 825.) Moreover, the Court of Appeal concluded, and Matar‘s briefing does not dispute, that a decision on timeliness grounds is not a decision “on the merits” in the relevant sense. Accepting that premise as undisputed (and without deciding its correctness), it follows that the ruling in favor of Nahigian was not a “final judgment on the merits,” and that claim preclusion is likewise unavailable. (DKN Holdings, supra, 61 Cal.4th at p. 824.) Thus, neither claim nor issue preclusion can support the summary judgment entered in favor of Matar, and the trial court‘s ruling to the contrary was erroneous.
IV. DISPOSITION
We affirm the judgment of the Court of Appeal; overrule Skidmore, supra, 27 Cal. 287; and disapprove Bank of America v. McLaughlin etc. Co., supra, 40 Cal.App.2d 620, to the extent it is inconsistent with this opinion.3